46 Miss. 528 | Miss. | 1872
This is an appeal from a decree of the chancery court of Leake county, sustaining a demurrer and dismissing a bill filed to foreclose the equity of redemption of certain lands mortgaged by Alphonso I. Bobbitt to Robert Huntington,to secure the payment of a promissory note for $500, executed by said Bobbitt to said Huntington. The bill was dismissed upon demurrer on the ground that the note, to secure the payment of which the mortgage was executed, was barred by the statute of limitations. The note was given for money loaned by Huntington to Bobbitt, and was dated the 15th day of April, 1857. On the 20th of February, 1866, John A. Hanson, as administrator of the said Alphonso I. Bobbitt, deceased, acknowledged the justice of the claim, and promised, in writing, as such administrator, to pay said note on or before the 1st day of January, 1868. It seems to be well settled by adjudications in this state and elsewhere, that where the bar of the statute of limitations is complete the bar will not be removed and the debt revived against the estate of his intestate, by an express promise by the administrator to pay it. Sanders v. Robertson, 23 Miss. 389;
Tbe only question presented by tbis case for solution is, does tbe same doctrine apply where tbe bar is not complete at tbe death of tbe intestate ? Tbe distinction between these cases cannot be made without putting a new clog on a statute, tbe utility of which has been greatly lessened and litigation increased by engrafting on it, by construction, an exception which is at war with its letter and spirit. Tbe safest rule seems to be to bold that no promise by an administrator shall take a case out of tbe statute of limitations. Tbis principle commends itself to our adoption by its certainty and uniformity, and as best calculated to promote tbe ends of justice in tbe administration of estates of decedents. An administrator can only discharge existing legal' obligations against tbe estate. He is tbe trustee or agent appointed by law, for tbe benefit and protection of tbe interests of tbe creditors and distributees who stand upon their strict legal rights, which cannot be permitted to be prejudiced by tbe voluntary and unauthorized acts of tbe administrator. His duty is prescribed by law, and that is the limit of bis power. Tbe law determines tbe extent of tbe estate’s liability, and be cannot enlarge it. He can make no contract except such as may be necessary in tbe course of bis administration. If be can make no new contract, bow can be make a promise which shall operate to prevent tbe bar of tbe statute of limitations from attaching to a claim against tbe estate % To admit that be has such power would be to place tbe estate entirely at bis arbitrary discretion.
In the case of Moore v. White, 6 Johns. Ch. 373, Chancellor Kent held, that any acknowledgment or admission by an executor or administrator will not bind tbe real assets in tbe bands of an heir or devisee. Is tbe heir, be inquires, to be charged, at tbe mere pleasure of tbe executor, with tbe debts of tbe ancestor % Does it rest entirely in tbe discretion of tbe executor, whether tbe heir is or is not to be
In the case of Bell v. Morrison, 1 Pet. 351, it was held that a promise by one partner after dissolution of the partnership is to be deemed a new contract, springing out of and supported by the original consideration. This was declared to be so both upon principle and authority. Then the question as to executors and administrators resolves itself into this: Have they authority, acting as trustees of the personal property, to make a new contract binding upon those in whose behalf they are appointed to administer it ? We think they have not. In such a case the administrator would not be liable in his official character as personal representative of the deceased for the want of power to make a new contract, which would be binding on the estate. Nor would he be liable in his individual character for the want of a new consideration, flowing to him and binding upon him personally, and without which he could not be held personally responsible upon the new contract or promise. Anri in support of this view of the law, we refer to Angell on Limitations, 280-287; Peck v. Botsford, 7 Conn. 178; Thompson v. Peters, 12 Wheat. 565; Fritz v. Thomas, 1 Whart. 66; Clark v. McGuire, 35 Penn. St. 259; Henderson v. Ilsley, 11 Smedes & Marsh. 9.
We are referred by counsel for the appellant to the case of Byrd v. Wells, 40 Miss. 711. That case differs from this in the fact that the executor had paid certain claims against the estate and asked a credit for them in his final settlement, which was excepted to on the ground that those claims were barred by the statute of limitations when they were paid by the executor. In this case the creditor is seeking to enforce the collection of a claim which is barred by the statute of limitations. And although that case may be correct, when viewed with reference to its peculiar facts and circum
And as we have seen that the administrator cannot charge
The decree is affirmed.
